01a53325
11-29-2005
Donna P. Collins, Complainant, v. Michael L. Dominguez, Acting Secretary, Department of the Air Force, Agency.
Donna P. Collins v. Department of the Air Force
01A53325
November 29, 2005
.
Donna P. Collins,
Complainant,
v.
Michael L. Dominguez,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A53325
Agency No. WE1M04106
DECISION
Upon review, the Commission finds that a portion of complainant's
complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact, but that other portions were
improperly dismissed for failure to state a claim, lack of specificity
and untimeliness. In her complaint, complainant alleged that she was
subjected to a hostile work environment under Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. on
the bases of race (African-American), sex (female), color (black),
and in reprisal for prior EEO activity when:
she was denied the following training and travel: Federally Employed
Women (FEW) in June 2003, Counselor PDI in June 2003, NPS site visit
in August 2003, Human Resources Training/TDY in August 2003, Manpower
PDI Course in 2003, ED 7631 Training and Performance in May 2003, OPSE
Training in July 2003, NPS site visit in August 2004, FEW Training in
July 2004, Manpower PDI course in 2004, OPSEC Training in July 2004,
and ED 7674 Training and Performance Improvement;
On September 26, 2003, she became aware that Air University counterparts
had been instructed to send functional plans and programming taskings
to the Commandant CAG and not directly to her office;
on August 24, 2004, she was allegedly not allowed to be present when
Captain W states that he wanted to talk with Lieutenant Colonel (LC) B,
and LC B told her that Captain W had a right to talk with him and Captain
W could �back brief� her later, and when she advised LC B she would be
filing a grievance over this, he responded, �You can do whatever you
want to do;�
Sergeant T was removed from her supervision sometime in October 2004;
programs (i.e., BOV, Institutional Research, Management Control
Program and Manpower) were moved out of her area of supervision and
responsibility;
she learned in July 2004, that she had been excluded from meetings and
correspondence;
she was not given any awards; and,
her position description was modified in August 2004.
With regard to claims one and two, the agency FAD indicates that the most
recent of the alleged discriminatory actions occurred in July 2004, but
complainant did not initiate contact with an EEO Counselor until December
10, 2004, which is beyond the forty-five (45) day limitation period.
Complainant claims, however, that she was unaware that she was subjected
to discrimination in connection with claim 1 until she obtained access
to paperwork in early December 2004 that indicated that a coworker's
unit had been granted funds for training at the time that her unit had
been denied it.
The agency dismissed claims three through six for failure to state
a claim. Specifically, the agency found that complainant failed to
establish that she had suffered some personal and direct harm or loss
with respect to a term, condition, or privilege of employment.
A fair reading of complainant's statements in the record indicate that
these allegations are all part of complainant's claim that she was being
subjected to a pattern of discriminatory and retaliatory harassment
by reduction of her supervisory authority and responsibilities which
created a hostile emotionally damaging work environment for her, caused
her to work additional hours and jeopardized the continuation of her GS-13
supervisory classification. Thus, we conclude that complainant's claims
sufficiently render her an aggrieved employee and state a claim. While
claims one and two were dismissed as untimely by the agency, they are
clearly part of complainant's overall harassment allegation and thus
should be viewed as background evidence for that claim on remand, even
if found to be untimely.<1>
The agency dismissed claims seven and eight for failure to properly
respond to a written request from the agency within 15 days of its
receipt. In particular, the agency noted that a letter was sent to
complainant on January 13, 2005, requesting clarification of the subject
claims. The agency
found that complainant's response lacked the requisite
specificity. Moreover, the agency noted that claim eight was being
dismissed because complainant did not bring her claim to the attention of
an EEO Counselor within 45-days of the alleged discriminatory incident.
The Commission concludes that the agency inappropriately dismissed
claims seven and eight for lack of specificity. Although the agency
correctly noted that complainant failed to respond within 15 days of
receipt of the letter, the record establishes that due to major surgery
and resulting mobility restrictions complainant did not receive the
letter until the 21st of January. The record also establishes that,
in her detailed response which was received by the agency on February
8, 2005, complainant not only explained why the response was late,
but informed the agency that much of the information it had requested
was inaccessible to her while on medical leave as it was on her office
computer. Finally, while the agency asserts that claim eight is also
dismissed for failure to timely contact an EEO Counselor, we note that
this claim involving the modification of her position description is
part of complainant's overall allegation of hostile work environment
harassment and as such, should be investigated.
Accordingly, we find that the agency improperly dismissed this complaint,
and we REVERSE this dismissal, and REMAND the complaint to the agency
for processing, as set forth in the ORDER below.
ORDER
The agency is ordered to process the remanded complaint in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 29, 2005
__________________
Date
1However, based upon complainant's allegation
that she was unaware of the alleged disparate treatment until shortly
before she contacted an EEO Counselor, claim 1 appears to have been
timely raised.